Case No. UKUT-00233-(IAC)

67. Our overall conclusion is that there is no single, one size fits all, answer to the rule 43 applications made consequent on Fordham J’s judgment in the JCWI case. We do not accept the submission that the judgment in JCWI requires all error of law appeals determined without a hearing after the Guidance Note was issued in March 2020 be set aside. This is not to negate Fordham J’s judgment, rather it recognises the scope of the issue before him. The JCWI judgment only concerned the legality of the Guidance Note when assessed against the Letts principle i.e., whether the Note contained a statement that was wrong in law or permitted or encouraged unlawful acts. On application of that principle, the JCWI judgment concluded that the Guidance Note was unlawful to the extent that it did not include or refer to the proviso to paragraph 4 of the Practice Direction that any decision in favour of no-hearing determination had to be in accordance with the overriding objective and fairness rights. 68. The JCWI litigation did not concern the “what happened next?” question. It did not address the merits of any rule 34 decision taken after the Guidance Note was published. It is not possible to conclude that simply because the Guidance Note had been issued and simply because the Administrative Court concluded that the note as formulated did not comply with the Letts principle, it must follow that every subsequent rule 34 decision was unlawful. That would overlook that each subsequent decision was in exercise of a judicial function and the product of consideration by a judge of the Upper Tribunal, well-used to conducting error of law hearings on a regular (if not daily) basis and exercising their functions in accordance with the overriding objective and well-known principles of fairness. 69. Moreover, each rule 34 decision is a reasoned decision. The merits of the rule 43 applications must be determined on consideration of the reasons given in each case. If those reasons whether expressly or by inference point to a conclusion reached without consideration of the principles that make up the overriding objective, or without consideration of whether determination of the error of law appeal without a hearing would be consistent with the principles of fairness, or a conclusion reached on application of an “overall paper norm” , then the rule 34 decision should be set aside because it proceeded on incorrect premises. As we have said already, the conclusion reached on any subsequent rule 43 application is unlikely to depend simply on whether in the case in hand, certain matters are or are not expressly mentioned (for example the Guidance Note itself). The reasons must be considered in the round to see what inferences and what conclusions may properly be drawn. It was submitted that this approach was at odds with conclusions stated at paragraphs 4.19 – 4.20 of the judgment in JCWI . We do not agree. The point considered by Fordham J at that point in his judgment was (and can only have been) a generic one: was the Guidance Note not Letts unlawful (i.e., not guidance that permitted or encouraged unlawful acts) because of the way it would necessarily be understood and applied by Tribunal judges? Fordham J answered that question in the negative but could only address the matter at the generic or in-principle level. By contrast, the rule 43 applications require us to consider and assess the legality of each rule 34 decision, on its own terms. D.